The International Centre for Settlement of Investment Disputes (ICSID) remains the pre-eminent venue for resolving legal disputes between foreign investors and host states.
Nearly 200 investor-state arbitrations are currently pending at the ICSID, with the caseload ranging from modest contract disputes to claims for billions of dollars in compensation following the outright nationalisation of foreign-owned investments.
It has been a decade since the ICSID last revised the rules and regulations governing its activities, so it is planning to kick off another reform push later this year.
One hot issue will be the perennial question of whether such arbitrations should be more open to the public. Currently, the ICSID discloses the names of every case brought to it, and it also publishes detailed legal pleadings and arbitral rulings if the relevant parties give their blessing.
Given the high stakes of these cases, with investors seeking financial compensation from public treasuries, there has long been a call for more transparency at the ICSID (and other forums where such disputes are resolved).
The ICSID appears to have heard these cries, as its secretary-general Meg Kinnear has since confirmed that a proposal for greater transparency will be part of the new reform push this year. The details remain undefined for now, but one possibility is that the new default could be for arbitral hearings to be open to the public, and for documents related to each case to be published online as the case unfolds.
Other topics under consideration include heightened arbitrator ethics rules. One ethical concern relates to the question of 'repeat' arbitrators, and how frequently a given arbitrator can be appointed by a particular party (for instance, a frequently sued country such as Venezuela) or a specific law firm. Critics worry that an arbitrator's desire for future appointments from their patron might influence how it decides a particular case.
While the ICSID already requires arbitrators to be independent and impartial, there are few guidelines written into the ICSID rules that would clarify where to draw ethical lines in specific cases.
A third issue that might be revived is the creation of an appellate mechanism, so that parties unhappy with ICSID rulings can appeal them. Currently, the ICSID offers only a limited ad-hoc process, where a new temporary panel is convened to review one particular arbitration ruling. Those ad-hoc panels are forbidden from second guessing arbitrators on factual and legal questions, and instead focus only on egregious failings of due process or similarly glaring flaws.
Proponents of an appellate review process insist that a standing body of judges would bring greater consistency to legal rulings, and give investors and governments a clearer view of what international law demands in foreign investment contexts.
However, not everyone is excited about an appeals body. Some investor advocates view it as a 'solution in search of a problem', with fears that any appeals body might be stacked with judges who are appointed solely by the ICSID's member countries, rather than investors, and thus less sympathetic to the concerns of business.
Luke Peterson is the editor of Investment Arbitration Reporter (http://www.iareporter.com) an online news and analysis service tracking FDI legal disputes.